Craig Thomler's professional blog - eGovernment and Gov 2.0 thoughts and speculations from an Australian perspective

Craig Thomler

I've worked in the online sector since 1995 in roles including founder, publisher, journalist, webmaster, marketer, channel manager, CIO, COO and visionary. I left the public sector in early 2012 to lead Delib Australia as Managing Director Australia and New Zealand. More...

Wednesday, January 29, 2014

The concept of national sovereignty has evolved over the centuries however has retained at its core the notion that nations, defined by geography, have the right to manage their own affairs and movements across their borders as they see fit, as well as to interact as recognised state entities with other states and other legal entities (individuals, corporations and not-for-profits).

The modern concept of national sovereignty was agreed to in the Peace of Westphalia in 1648, following the thirty-year war, where the economically exhausted states of Europe agreed to establish the notion of territorial sovereignty as a norm of noninterference in the affairs of other nations, a principle that, more or less, holds to this day globally.This was the point in time when modern nation-states, based on geographic boundaries, started to take a dominant position in how human society was organised, leading to today's situation where every square inch of land is claimed by at least one nation.
National sovereignty was, and remains, and extremely important and defining characteristic of modern civilisation. It not only grants powers to national governments, to the exclusion of external bodies, but also places responsibilities on them to provide some level of security, education and support for the people born and living within their sovereign borders. It creates the notion of citizenship, laws and taxes over property, income and commerce - measures that provide the security and public infrastructure that underpin society today.

However national sovereignty was developed at a time when the fastest form of transport was a horse, when messages were sent between locations by courier, smoke signals or carrier pigeons, when money only existed in your wallet and every business was tied to a geographic location, or an itinerant wandering tinker or merchant who could be physically tracked down.

There was little understanding of lightening, let alone electricity and even the invention of the Leyden jar, the first primitive capacitor (the word 'battery' hadn't been coined) was almost a hundred years in the future.

National sovereignty on the basis of geography made sense in 1648. The majority of people did not travel more than 100 miles from their birthplace, except during war, and it was possible to calculate a nation's wealth by adding up all the physical 'stuff' which in its borders (as the English had began doing in 1086 with the Domesday book - primarily for taxation purposes).

Today the majority of communication is electronic, as is the bulk of the money supply. While we still make lots of physical 'stuff', more and more of our services are delivered online and more and more physical stuff is imported and exported across national borders enable by electronic transactions.

While our garbage, roads, electricity and water are still delivered locally to where we live, more and more of our interactions with governments and companies, with welfare payments, education and even significant portions of health care able to be delivered remotely from any location on the planet - to peoples' homes directly or via virtual operators in physical offices (which Centrelink is already experimenting with).

This means that governments could theoretically outsource much of their service delivery to low cost areas within their jurisdiction - or to low-cost jurisdictions elsewhere in the world.

Beyond service delivery, a great deal of policy development could similarly be outsourced. There's really no need to employ locals to develop local policy - it is simply important to employ the best qualified staff and provide them with the best quality information and access to locals to understand their needs and concerns. Theoretically policy could already be developed anywhere in the world, using specialists with the experience to understand a jurisdiction's citizens and conditions in order to provide the best recommendations.

We see this on a small scale already - public officials at councils may live in neighbouring council regions. State and territory officials may live across a border in another state or territory. National governments tap foreign specialists and consultancy companies for expertise they cannot find in their own jurisdiction.

This outsourcing approach can even impact on geographically specific services - from emergency management to road maintenance. When digital networks can be used to supply information and cheap transport can be used to relocate assets to where they are needed on a timely basis, why should individual councils, or even state departments run road crews or location-specific emergency services?

Services can be delivered from wherever is reasonable and cost-effective - regardless of artificially imposed borders, with emergency services, road maintenance. We already see this in effect in emergency scenarios when specialist teams are moved around countries, or between countries, to assist in major disasters or provide expertise in unusual incidents.

With all of this sharing between jurisdictions, the notion that any geographic territory is sovereign unto itself is rapidly becoming a convenient fiction. Certainly when we shuffle public workers between jurisdictions we also expect them to abide by local laws - however why should those laws differ measurably anyway? It may simply leads to inefficiencies, productivity loss, even unnecessary injuries or loss of lives.

This gets even worse when services are delivered remotely - a surgeon in one country remotely operates on a patient in another, or a citizen calls a government help desk located in another jurisdiction and a staff member behaves in a manner that is inappropriate in the citizen's jurisdiction but legal in the jurisdiction they work in. Which jurisdiction takes legal precedent?

Add to this the continuing rise of transnational corporations - who may be domiciled in a particular state, but that deliver services globally - and we see further erosion of national sovereignty as a concept.

Recent free trade agreements, particularly those involving the United States of America, have begun pushing the notion that foreign companies may sue a national or state government should they change their laws in ways which may reduce the company's profit potential. This type of litigation has already begun in Canada and Mexico under the North American Free Trade Agreement (NAFTA) and looks to be extended to many more countries under the Trans-Pacific Partnership (TPP), which involves Australia and New Zealand.

While the draft treaty remains secret and in negotiations, leaked sections of the TPP suggest it proposes the same conditions on signatory governments across the Pacific region. This would allow non-state entities to sue states, as we are already beginning to see occur in North America.

While this may be supported by large corporate interests (who naturally wish to insulate their interests and shareholders from unfavourable legal changes), this is a further limit on the sovereignty of states. If a foreign domiciled company can sue a government for changing the law then there is far more pressure on states to step cautiously around large corporations, weighing their interests more closely than that of citizens who may be denied the same opportunity to sue states.

In the past spying was limited to known 'persons of interest' who were usually already suspected of wrongdoing or held sensitive positions.

With the rise of the internet and mobile devices it has now become easier and more cost-effective for nations to suck down as much data as possible and then attempt to identify patterns which indicate people they should watch - apologising for any information they shouldn't have touch later (if indeed they even let people know they have it).

In theory any specific individual is unlikely to have their profile flagged for examination by foreign intelligence analysts - the technology simply isn't able to store and build profiles on everyone as yet (as far as I know). However intelligence agencies are in the business of collecting and interpreting intelligence and have an ongoing interest in improving their systems. They want the ability to tell which 18 year old is likely to become a senior corporate executive, political leader, cutting-edge scientist or a terrorist so they can take appropriate steps to head off the threat or cultivate their national interests as early as possible.

The data is there - the software is rapidly improving - meaning that we all now live under the gaze of foreign interests who may choose to watch our every comment online.

While the NSA is getting the current attention regarding this mass spying, other governments have been taking similar steps, for national and commercial advantage. China and Russia are both sophisticated users of online systems, with Russia suspected of having engaged in state-sanctioned cyberwars against its neighbours.

Where nations are taking a copy of all data passing through their jurisdiction, this technically fits within their sovereignty - however with the way the internet operates data simply follows the fastest path. Unless you are using a VPN, it is quite possible that data distributed online may pass through several jurisdictions its way to its final destination.

Governments around the world have been tightening their own criteria around online hosting, encouraging (but usually not forcing) agencies to use locally hosted online services and favouring locally domiciled services, however citizens are in a completely different boat.

Anyone who uses Facebook, Twitter, Gmail, Microsoft Office365, plays games via Xbox or Playstation, has their data travel through a range of jurisdictions and governments have little ability to enforce or even legislate for the rights of citizens who choose to use online services - particularly where there is limited cooperation between the hosting nation and the end user's jurisdiction.

Which nation's sovereignty takes precedent when using an overseas hosted service, how can Australia enforce privacy, security or other legal requirements that it mandates local services meet for the safety of citizens?

The answer is that without global agreements and treaties, no nation can effectively enforce their sovereign position or laws - with the fallback being that citizens use these services 'at their own risk'.

So what does this mean for sovereignty in the 21st century, if a digitalised world and changes in power between governments, corporations and citizens mean that nations can no longer enforce their sovereignty in the ways envisaged in centuries past?

It is likely that most nations will continue to attempt to preserve the illusion of sovereignty - while it may not exist in fact, or to the extent it existed when geographic borders were 'solid', it is a convenient fiction that allows legal systems and state-based services to continue to perform their functions for the majority of systems.

However there will be increasing pressure on this illusion as transnational and stateless entities gain strength - whether through trade agreements (such as the TPP), remotely delivered services (either privately or publicly delivered) or through digital services that exist 'in the cloud' for real - not on a set of servers in a given jurisdiction but software that actually runs across the internet, with fractions of it operating on mobile devices, home and work computers all over the world.

At some point sovereignty will simply snap, probably due to technological advancement, but potentially also due to the constant demand for increasing profits and the need to minimise cross-border barriers to its generation.

What happens next is the question. Will states attempt to renegotiate the concept of sovereignty in a more limited form within broad global guidelines - a global government with local variations and customs?

Or might we see a division of services between geographic and non-geographic states - where geographically relevant services are delivered by geographic governments, or contracted commercial providers, while we reorganise ourselves into digital states for the provision of non-digital services - with the ability to easily change digital nationality, voting with our feet for the best offer as we do for commercial products.

We could even see the contracting of government to professional (commercial) providers, with citizens become shareholders and able to 'vote out' an entire public service and replace it with another. Like a body corporate approach, people would retain the right to vote for their representatives, however their role would be to manage the various commercial services that develop policy and deliver services for their constituents.

I wouldn't like to predict any specific outcome - we're still too early in our digital revolution to really know where things are likely to go.

However I do expect that people being people, no matter how we organise ourselves for governance and public service delivery some things will remain the same. People will identify with 'tribes' or communities, both those based on geography and those based on common interests (which might be non-geographic). These tribes will form the basis for our social organisation even if they don't form the basis of our public service delivery.

The young adult of 2090 will still identify as an Australian and a Victorian - even if his education was provided electronically through a Indian education provider, the local roads maintained by a corporation based out of the US, his 'local doctor' accessed virtually from a Brazilian medical centre (who also provides the nearby medical clinic's remote surgeon) and his student support payments organised and paid via a Phillippino service desk. He will still follow his favourite football team - Real Madrid - attending their games remotely via his 3D headset, and socialise with friends from around the world in virtual nightclubs (with no closing hour).

He will attend university online and work virtually, using office software hosted in the cloud that is designed by a stateless entity, charging for time used and paying for the use of his devices' processing cycles (where it is virtually hosted across millions of devices).

He will even vote digitally - not just every three years but on every major topic for which he is interested and has met the qualifying conditions (based on his knowledge of the subject and its impact on his life), with government services divided by tier into a local geographic council and a digital non-geographic state.

He will still be an Australian - even if (or when) his government, and many public services, are delivered via the cloud.

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